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2016 Supreme(Raj) 78
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, BENCH AT JAIPUR
JAISHREE THAKUR, J.
M/s. Geo Miller & Co. – Appellant
versus
The State of Rajasthan Pvt. Limited & anr. – Respondent
S.B.Civil Writ Petition No. 6613 of 2015
Decided On : 05-04-2016
For the Appellant :Mr. S.D. Singh with Mr. Ravi Bhansali, Mr. Manoj Bhandari, Advocates
For the Respondent:Mr. P.R. Singh, AAG assisted by Mr. Dinesh Ojha, Advocate
Headnote:
Tender – Qualification - Construct and establish a plant known as “UWSS Takhat Sagar Based Water Supply Works – Technical Bid - Challenge impugned order by which respondent no. 2 has held petitioner-M/s Geo Miller & Company Private Limited not qualified for opening their price bid as technical proposal has been considered to be non-responsive, with a further prayer for issuance of a writ of mandamus directing the respondents to open price bid of the petitioner and in case the petitioner is found to be lowest bidder, contract be awarded to it – Held, A court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself following - Whether process adopted or decision made by the authority is mala fide or intended to favour someone .OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say - judgments rendered in Tata Cellular vs. Union of India (1194) 6 SCC 651 , Sri Ram Builders vs. State Of M.P. 2014) 4 SCC 746 from where the ratio culled out is that the courts can interfere if satisfied that there is infirmity in process of taking a decision, decision is irrational, there is procedural impropriety - Categorical finding of this court is that petitioner filed this petition without disclosing the fact that it stood blacklisted, did not give full particulars as required in the bid documents, and the decision taken that the bid documents is non-responsive is not borne out of malafides nor there is any infirmity in the decision making process for this court to interfere - petition dismissed
1. The challenge in the present writ petition is to the impugned order dated 15.6.2015 (Annex.10), by which respondent no. 2 has held the petitioner-M/s Geo Miller & Company Private Limited not qualified for opening their price bid as the technical proposal has been considered to be non-responsive, with a further prayer for issuance of a writ of mandamus directing the respondents to open price bid of the petitioner and in case the petitioner is found to be the lowest bidder, the contract be awarded to it.
2. Briefly stated, respondent no. 1-State of Rajasthan invited tenders to construct and establish a plant known as “UWSS Jodhpur, Takhat Sagar Based Water Supply Works viz. Improvement of New Intake, RW PUMP House, RW PIPLINE, WIP, CWR and related work('the facilities”) on single responsibility basis turnkey job contract including necessary design, build and operation and maintenance for ten years.” The respondents provided the bid documents running into four parts. Having necessary experience, the petitioner participated and submitted all required documents with the bid. The Chief Engineer, by an order dated 15.6.2015 (Annex. 10), ordered that the technical bid submitted by the petitioner as non-responsive and thus, did not qualify for opening of their price bid. The Chief Engineer held as under:-
“2. Technical Proposals of following Participating Bidders are considered non-responsive on account of reasons mentioned their against and thus does not qualify for opening of their price bid (i) M/s Geomiller & Co. Pvt. Ltd.: Due to failure to submit form CON-2: 'Historical Contract Non performance' and breakup of credit limits available, utilized and balance required as on 4.2.2015.”
3. Aggrieved against the non-consideration of price bid and holding the petitioner's bid to be non-responsive, the present writ petition has been filed.
4. Mr. S. D. Singh and Mr. Ravi Bhansali, learned counsels appearing on behalf of the petitioner-Company contend that the petitioner was incorporated under the Companies Act, 1913 and was in the business of establishing Water Treatment Plants, Effluent Treatment Plants, Sewage Treatment Plants throughout the country and it has rich experience in the aforesaid field. The petitioner had constructed as many as 600 plants throughout the country and as many as 32 plants in the State of Rajasthan. It had established and executed plants of huge capacity to the tune of 68 MLD, 182 MLD, 216 MLD and 410 MLD and thus, having the necessary experience and fulfilling all the requisite qualifications, it was entitled to be considered as the most suitable bidder for the award of contract. It is submitted that the respondents had erred in holding the bid submitted as non-responsive.
5. It is argued that the respondents rejected the technical bid of the petitioner on account of the fact that it had not submitted details in form COM-2 about the Historical performance of its contract and pending Litigation and the respondents had stated “failure to submit breakup credit limit available, un-utilized and balance required as on 4.2.2015” as a reason for holding the technical bid as non-responsive. The petitioner had submitted a certificate dated 30.5.2015 to the effect that the petitioner has credit limit of Rs. 74.50 crores and un-utilized balance of Rs. 24. 88 crores, which limit is beyond the required limit of Rs. 20.9 crores as required under the bid document (being the value of the project). As the technical bid was to open on 24.2.2015, the credit limit as existing on 31.3.2015 would necessarily cover the period and thus, it could not be said that the petitioner was not financially viable to undertake the project. It is further argued that asking the petitioner to submit a certificate as to the un-utilized amount of credit limit, goes beyond the requirement as specified in the bid document, since a bidder was
